NANDIPATI JANIKAMMA Vs. NANDIPATI MATTAREDDI

JUDGEMENT

(1.) The defendants are the appellants in this second appeal. The suit was filed by the next presumptive reversioners to the estate of one late Venkatareddy who died on 24th October, 1918, leaving behind him his widow the first defendant. Defendants 4 to 11 are the presumptive reversioners and as they did not take any action the plaintiffs who are the reversioners next in degree to defendants 4 to 11 instituted the suit. The first defendant made an earlier adoption which was attacked by defendants 4 to 7 in O.S. No. 53 of 1925, Sub-Court, Guntur. In that suit it was held that the will put forward by the widow of Venkatareddy was invalid and was not genuine and that the adoption made by the first defendant of the present second defendant was invalid. She made yet an earlier adoption of the second defendant's brother. He died and thereafter she adopted the second defendant which adoption was questioned in O.S. No. 53 of 1925. The decision of the trial Court was confirmed in first appeal and also in the second appeal by the High Court. That litigation terminated on 8th December, 1936. The first defendant thereafter put forward a deed of consent from the reversioners, dated 17th March, 1937, executed by the presumptive reversioners. Defendants 4 to 11 gave their assent to the adoption of the second defendant by the first defendant which was followed by a deed of adoption, dated 18th March, 1937. Exhibit B-2. The second defendant and the nineteenth defendant, brother of the second defendant, on 5th August, 1943, alienated certain property belonging to the estate of Venkatareddy in favour of the twentieth defendant. As the presumptive reversioners did not move in the matter the present plaintiffs who are next in order instituted this suit for a declaration that the alienation by defendants 2 and 19 of the plaint schedule properties in favour of the twentieth defendant is invalid and inoperative and not binding on the reversionary heirs to the estate of late Venkatareddy after the death of the widow the first defendant. There is no specific prayer in the plaint asking for a declaration that the adoption of the second defendant by the first defendant is invalid and is not true nor is there any serious reference to the adoption in the plaint. In the Courts below the truth and validity of the adoption was canvassed by the parties and the concurrent finding of the Courts below is that there was never any adoption of the second defendant by the first defendant and there was inerely execution of two deeds,-a deed of consent by the r.eversioners, Exhibit B-1 and deed of adoption, Exhibit B-2. It was also found that the consent of the reversioners was vitiated by the fact that it was purchased by the widow. In the result, both the Courts below held that the adoption was not true and valid. These findings were accepted before us as they are findings of fact. The hearing, therefore, proceeded on the basis that these findings are correct. They cannot be questioned hereafter.

(2.) There is another question raised in the Courts below and that relates to the plea of limitation and that is the only question which survives in the appeal. The contention urged on behalf of the defendants was that as the plaintiffs failed to institute a suit for declaration that the adoption was invalid within six years from the date of their knowledge and as the present suit is beyond time, they cannot, by framing the plaint as one for a declaration that the alienation by the second defendant and the nineteenth defendant in favour of twentieth defendant is invalid, raise the question of the validity of the adoption and that therefore the suit which is in substance one for a declaration that the adoption is invalid must be held to be barred.

(3.) In the plaint, the plaintiffs ignored the adoption altogether as it is not real but still if the second defendant was put forward as the adopted son, whether it was incumbent upon the reversioners to institute a suit for a declaration that the adoption was invalid within six years as provided under Article 118 of the Limitation Act before instituting a suit for declaration that the alienation made by the alleged adopted son is invalid, is a question which requires consideration by a Bench, as there seems to be some conflict of authority on the point. In Bapaiah v, Akkamma, (1916) 36 I.C. 255.